JOINT COMMENTS OF MAINE ATTORNEY GENERAL JANET MILLS AND

PATRICIA AHO COMMISSIONER OF THE MAINE DEPARTMENT OF

ENVIRONMENTAL PROTECTION ON THE DRAFT WATER QUALITY

STANDARDS PROPOSED BY THE PENOBSCOT INDIAN NATION

AUGUST 7 2014

The State of Maine by and through its Office of Attorney General and its Department of

Environmental Protection collectively the State hereby submit the following joint comments

in response to the recent Public Notice of Hearing and Request for Comments by the

Penobscot Indian Nation PIN in connection with PINs draft proposed water quality

standards WQS dated June 10 2014 These comments are intended to notify PIN of the

States position that the State rather than PIN has the authority under the Maine Implementing

Act 30 MRSA §§ 6201 et seq MIA and the Maine Indian Land Claims Settlement Act 25

USC §§ 1721 et seq MICSA collectively Settlement Acts and the Clean Water Act 33

USC §§ 1251 et seq CWA to set WQS for Maine waters within or near PINs territory

Pursuant to the operative statutes the State has the authority and responsibility to establish WQS

for all of the waters of the State of Maine including those within or near PINs and other Indian

territories and the statutes do not permit PIN or any other Maine tribe to set WQS in the States

stead as is more fully explained below By submitting these comments the State is not in any

way 1 submitting itself to PINs tribal jurisdiction andor 2 recognizing PINs authority or

jurisdiction to promulgate WQS or take any other environmental regulatory measures for any

waters within the State including those waters arguably within or near PINs territory

The State rather than Maines Indian tribes has the authority and jurisdiction under the

CWA and the Settlement Acts to establish WQS in or near Maine Indian Territories

The CWA instituted a comprehensive program for controlling and abating water

pollution Train v City of New York 420 US 35 37 1975 The CWA aims to restore and

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maintain the chemical physical and biological integrity of the Nations waters 33 USC §

1251a In establishing this regulatory framework Congress was careful to recognize

preserve and protect the primary responsibilities and rights of States to prevent reduce and

eliminate pollution 33 USC § 12516

It is now wellestablished that the State has primary environmental regulatory jurisdiction

over all waters in the State of Maine including any waters in or near tribal territories The 1980

Maine Indian Settlement provided that with very limited exceptions the Tribe would be

subject to Maine law Maine v Johnson 498 F3d 37 42 1st Cir 2007 One of the

cornerstones of MIA establishes

Except as otherwise provided in this Act all Indians Indian nations and tribes

and bands of Indians in the State and any lands or other natural resources owned

by them held in trust for them by the United States or by any other person or

entity shall be subject to the laws of the State and to the civil and criminal

jurisdiction of the courts of the State to the same extent as any other person or

lands or other natural resources therein

30 MRSA § 6204 The then Interior Secretarys stated to Congress that the Settlement

Acts were intended to effectuate the broad assumption of jurisdiction over Indian land by the

State of Maine HR Rep 961353 at 28 reprinted in 1980 USCCAN 3786 38033804

report of the Department of the Interior Johnson 498 F3d at 45 n10 This jurisdictional

principle was confirmed and approved for federal purposes in MICSA 25 USC § 1725

At the time the Settlement Acts were adopted the Interior Department largely

responsible for relations with Indian tribes told Congress that the southern tribes

lands would generally be subject to Maine law HR Rep 961353 at 28 report of

the Department of the Interior The Senate Report adopted by the House Report

declared that State law including but not limited to laws regulating land use or

management conservation and environmental protection are fully applicable as

provided in the proposed bill and Section 6204 of the Maine Implementing Act S

Rep 96957 at 27 HR Rep 961353 at 20

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Johnson 498 F3d at 4344 emphasis added Thus Congress understood that under the

Settlement Acts Maine would retain full environmental regulatory authority over Maine Indian

territories Congress also understood that any special environmental rights that might be

afforded to Indian tribes generally or by other laws would be inapplicable in Maine

The Senate Report stated that for example although the federal Clean Air Act 42

USC § 7474 accords special rights to Indian tribes and Indian lands such rights

will not apply in Maine because otherwise they would interfere with State air quality

laws which will be applicable to the lands held by or for the benefit of the Maine

Tribes This would also be true of police power laws on such matters as safety public

health environmental regulation or land use S Rep 96957 at 31

Id at 44 n7

This Congressional understanding of the States environmental jurisdiction and authority

over Maine Indian tribal territories was subsequently confirmed again by Congress in 1987 when it

amended the CWA by inter alio adding Section 518 which sets forth tribal rights and

responsibilities Section 518 allows Indian tribes to apply for treatment as state status 33

USC § 1377e Generally outside of Maine an Indian tribe may now as a result of the

passage of Section 518 of the CWA be granted jurisdiction to regulate water resources within its

borders in the same manner as states Outside of Maine this includes the authority to establish

tribal WQS subject to EPA approval and the authority to issue National Pollution Discharge

Elimination System NPDES permits for discharges into such waters 33 USC § 1377e 40

CFR § 1318 City of Albuquerque v Browner 97 F3d 415 418 Cir 1996 However

because it would affect Maines regulatory jurisdiction and it was not made explicitly applicable

to Maine Section 518 does not apply in Maine 25 USC § 1735b Indeed Congress

considered this very issue

This section does not override the provisions of the Maine Indian Claims

Settlement Act 25 USC § 1725 Consistent with subsection h of the

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Settlement Act the tribes addressed by the Settlement Act are not eligible

to be treated as States for regulatory purposes

Water Quality Act of 1987 Section bySection Analysis reprinted in 1987 USCCAN 5 43

emphasis added see also Johnson 498 F3d at 43 n5 EPA also addressed this issue in a 1993

guidance document and reached the same conclusion

Aprovision of the 1980 Federal Settlement Act 25 USC § 1725h

would seem to invalidate federal laws that might give the Penobscots

special status including treatment as a state for certain environmental

programs or purposes if it would affect or preempt the States authority

including the States jurisdiction over environmental and land use matters

The final critical provision of the 1980 Federal Act for jurisdictional

analysis relates to future legislation Future federal legislation for the

benefit of Indians that would affect or preempt state laws including the

State Act would not apply in Maine unless the federal legislation

specifically addressed its application in Maine

Thus any post1980 special federal legislative provisions that might give

Indians special jurisdictional authority if for example any federal laws in

the 1980s provided authority for EPA approval of a Tribal environmental

program equivalent to a state environmental program delegated by EPA to

the state could not provide the Penobseots with such jurisdictional

authority unless the federal legislation specifically addressed Maine and

made the legislation applicable within Maine

US EPA Memorandum Penobscots Treatment as a State Under CWA § 518e at 8 July 20

1993 Thus Congress expressly considered and rejected the idea that under the Settlement Acts

Maine Indian Tribes including PIN have any environmental regulatory jurisdiction over Indian

territories In Maine v Johnson the First Circuit Court of Appeals reached the same conclusion in

the context of the CWA Therefore under the Settlement Acts and the CWA the State and not

PIN or any other Maine Indian tribe has the authority to promulgate WQS

In any event PINs proposed WQS in addition to being unlawful under the Settlement

Acts and the CWA are unnecessary because Maines WQS were promulgated by the State

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following full notice and hearing including consideration of comments from PIN other Maine

tribes and members of the public and are more than adequate to protect all Maine waters for the

benefit of all citizens residing in Maine including members ofKN

Dated 24 ap40

JANET T MILLS

ATTORNEY GENERAL

Dated

PATRICIA W AHO

COMMISSIONER MAINE DEPARTMENT

ENVIRONMENTAL PROTECTION

2

I I

F1 1 N 111

TMILLSUu FATKIciA W AHO

6 State House Station

Augusta ME 043330006

207 6268800

17 State House Station

Augusta ME 043330017

207 2877688

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